pay attorney bills or transaction costs for the petitioners.
Still, there are those who object.
“This is a very old and well-established law that
people have relied upon for a long time,” says Patrick
Randolph, a professor at the University of Missouri-Kansas City School of Law who specializes in property
and real estate issues. “It has generally allowed for reasonable solutions to property disputes.”
Randolph is concerned that the proposed uniform
law will be too broad and overly inclusive, and will
force courts to weigh considerations that are indefinable. Likewise, Randolph is concerned that the proposed uniform law will give preference to some people
over others by allowing their emotional stake in the
land to be considered by a judge.
“This is real estate, and real estate is something that
should be treated as a market,” Randolph says. “The
problem is that people are going to take advantage of
the statute. There will be false positives, where people
will raise the protections of the statute and later just
make a profit off of it.”
Freeman Beach LLC lawyer Hester agrees, saying
that passions often run high around litigation over land,
but that doesn’t mean that courts should consider emotions or family heritage over facts and reason.
“Down South, we’re creatures of the land. We’re tied
to our land. Every piece of land here has ancestral history and is precious to someone,” says Hester. “But
that doesn’t mean that
courts should get involved
in such an intangible factor. This would open up
a terrific can of worms
and would give judges
arbitrary powers to deny
legal rights.
“The more intangible
factors you throw in the
mix, the more difficult it is
for an appellate court to
review a decision.”
But others involved in
the drafting process say the
critics are ignoring the evi-
dence that heirs’ property A surfing club trial meet at Freeman Beach, circa 1950.
only became an issue when
speculators saw the opportunity to make money and
were allowed to proceed without reasonable restraints.
“It doesn’t seem to me that the law ought to be encouraging people who have made use of the land and
live on the land to be thrown off their land by speculators,” says Carl Lisman, a principal at Lisman, Webster
& Leckerling in Burlington, Vt., who is helping to draft
the uniform law.
The ABA’s Property Preservation Task Force has
studied the issue since 2001, and the association’s
Section of Real Property, Trust and Estate Law has
committed $135,000 to finance law clinic assistance to
heirs’ property owners determined to keep their land.
Others have suggested allowing longtime property
owners—when they occupy the property, improve it
and pay the taxes—the ability to assert an adverse possession claim. There has also been some talk of trying
to convince the U.S. Department of Agriculture to address the problems of land loss and heirs’ property.
Organizations like the Southern Coalition for Social
Justice conduct outreach to clients to proactively avoid
land-dispute problems. For example, by forming an
LLC or otherwise accumulating interests, the owners
are better able to protect themselves.
“When property owners start to work together, suddenly their real estate that was a ship without a rudder
can be directed,” says Dietrich. “The heirs themselves
can develop or preserve their land.”
Lawyers involved in heirs’ property cases are also emphasizing mediation and arbitration, dividing the land
into equitable partitions, creating trusts, and encouraging landowners to write wills. Another option is to use
conservation strategies to have the land preserved for
generations to come. In the case of Freeman Beach, for
example, the remaining family members have discussed
putting the property into a land preservation trust.
“We are trying to get to families before they lose
their land,” says Carolyn Gaines-Varner of Selma, Ala.,
economic justice advocacy director for Legal Services
Alabama. “We are trying to
convince people to protect
their property, but some
people don’t want to have
to make those choices.”
While advocates for the
poor say they’ve seen more
cases involving heirs’ prop-
erty in recent years, some
speculate that the economic
downturn, which has stalled
land development, will also
spare some heirs’ property
owners from fighting battles
over their land for now.
Still, those advocates
remain worried that their
clients, already facing un-
employment in rising numbers, could also now face the
prospect of losing their land.
“For some people, the land is all they have,” says
Gaines-Varner. “If it gets sold, these people have no
place to go. For many people, owning land gives them
a sense of pride. When you take the land from them,
you take away their only chance to own property and
get that pride of ownership.” ■
Anna Stolley Persky is a freelance writer who is based in
Washington, D.C.
